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CONSTITUTIONAL SOURCES OF 
THE LAWS OF WAR 



ARTICLE 



ON 



THE CONSTITUTIONAL SOURCES OF 
THE LAWS OF WAR 



BY 



HORACE L. B. ATKISSON 




PRESENTED BY MR. FLETCHER 
JUNE 9, 1917.— Referred to the Committee on Printing 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1917 



K* 



SENATE RESOLUTION NO. 100. 

(REPORTED BY MR. FLETCHER.) 



In the Senate of the United States, 

September 1 1, W17. 
Resolved, That the manuscript submitted by the Senator from 
Florida (Mr. Fletcher) on June 9, 1917, entitled 'Constitutional 
Sources of the Laws of War," by Horace L. B. Atkisson, of the 
Washington, D. C, bar, be printed as a Senate document. 
Attest : 

.James M. Baker, 

Secretary. 

2 

D. of D. 
OCT !5 1917 



K 



ANALYTICAL TABLE OF CONTENTS. 



POWERS OF CONGRESS. 

As to Piracies, and Offenses Against Law of Nations — Protection to com- 
merce — Definitions of offenses — Offenses on vessel held by pirates; By for- 
eigner on foreign ship — Counterfeiting foreign money and securities — State 
jurisdiction 5 

As to War, Prlvateering, and Captures — Plenary power of Congress — 
Exclusive power of Congress to declare war or conclude peace — Effect of 
declaration of war — Rights of action between citizens of belligerents — To 
acquire territory — Rules of public law applicable to civil war — Power to 
repel invasions and declare war against a State — To seize property for war 
purposes — To confiscate enemy property — Right to prize money- — Per- 
mitting partial intercourse with the enemy — To establish military tribunals 
to try civilians — Limitations of actions — Court-martial for assassins of Presi- 
dent — State tax on passengers 7 

To Raise and Support Armies — No appropriation for longer than two years — 
Increase and reduction of the Army — Power of conscription — Regulations as 
to enlistment — Enlistment of unions — Right to appoint officers — Power to 
prevent evasion of military duty 13 

To Provide and Maintain a Navy — As to Rules for Army and Navy — 
To Provide for Calling Forth the Militia— To Provide for Organ- 
izing and Governing Militia 16-21 

POWER OF PRESIDENT. 

Relation to authority of British Crown — To establish Army regulations — Rep- 
resented by superior officer in command — Effect of military occupation — 
Extension of territory and operation of laws — Establishment of provisional 
government — Establishment of provisional court — Power to convene courts- 
martial — To court-martial or detain civilians — To repel invasion and sup- 
press insurrection — To accord belligerent rights to insurgents — To employ 
secret agents — When Commander in Chief of militia — Appointment of Army 
officers — Appointment of Regular Army officers to service in militia — Ad- 
mission of merchandise from conquered territory — "Departments" 23 

Trial by Jury — When Indictment or Presentment by Grand Jury not 

Indispensable 28 

Quartering Soldiers 29 

TREASON. 

Power of Congress limited — Constitutional definition of treason— Statutory 
origin of definition — "Levying war" — Who are "enemies"? — What con- 
stitutes giving aid and comfort — Constructive treasons — Who may be guilty 
of treason — Accessories — Evidence required for conviction — Proof of intent — 
Punishment prescribed by the Constitution — Jurisdiction of State courts. ... 30 

HABEAS CORPUS. 

By whom privilege of writ may be suspended — Power of Congress — Authority 
of President — Scope of power — Protection of officers making arrests — Writs 
issued by State courts 35 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 



BY HORACE L. B. ATKISSON, 

OF THE WASHINGTON, D. C, BAR. 



POWERS OF CONGRESS. 

'The Congress shall have power * * * to define and punish piracies and 
felonies committed on the high seas, and offenses against the law of nations." (Art. 
I, sec. 8, clause 10.) 

This is one of the clauses of the Constitution that give to Congress 
authority to protect the commerce of the United States. Congress 
is vested in express terms with power to regulate commerce, and to 
make all laws proper and necessary to carry that power into effect, 
to the extent of giving full protection thereto by its criminal juris- 
prudence. 

Charge to Grand Jury, 2 Sprague (U. S.), 279; 30 Fed. Cas. No. 18256. 

Piracy is universally understood in the law of nations as robbery 
or a forcible depredation on the high seas, animo furandi. It is the 
same offense at sea with robbery on land. 

1 Kent, 183; 4 Blackstone, 71, 73. 

A statute for the punishment of piracy, "as defined by the law of 
nations," is sufficient without further definition. 

I . 8. v. Smith, 5 Wheaton, 153; U. S. v. Brig Malek Adhel, 2 Howard, 210. 

While Congress is given power to define and punish, it is not nec- 
essary, in order to make a valid statute, that upon the face of the 
statute it name the acts denounced as offenses against the law of 
nations. It is enough if the statute describes the act, and denounces 
it with punishment, and that the act in its nature comes within the 
scope oi international obligations. 

U.S. v. White, 27 Fed. Rep., 203. 

The manifest purpose of this provision is to empower Congress 
to provide for the punishment as crimes of all such infamous acts 
committed on the high seas as constitute offenses against the United 
States or against all nations. 

1 Kent, 188. 

An act of Congress providing "that if any person or persons 
whatsoever shall, upon the high seas commit the crime of piracy as 
defined by the law of nations, and such offender or offenders shall 
be brought into or found in the United States, every such offender 
or offenders shall, upon conviction thereof, etc., be punished with 
death, ' ' is not unconstitutional in leaving the offense to be defined 
by the law of nations. 

5 



6 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

Ill U. S. v. Smith (5 Wheaton, at page 157), the court said: 

To define piracies, in the sense of the Constitution, is merely to enumerate the 
crimes which shall constitute piracy; and this may be done either by a reference to 
crimes having a technical name and determinate extent, or by enumerating the acts 
in detail upon which the punishment is inflicted . 

When an act of Congress, making it an offense to endeavor to 
make a revolt on the high seas, does not define the offense, it is 
competent for the court to give a judicial definition of it. 
U. S. v. Kelly, 11 Wheaton, 417. 

Murder or robbery committed on the high seas may be an offense 
cognizable by the courts of the United States, although it was com- 
mitted on board of a vessel not belonging to citizens of the United 
States, as if the vessel had no national character, but was possessed 
and held by pirates, or persons not lawfully sailing under the flag 
of any foreign nation. 

U. S. v. Holmes, 5 Wheaton, 417. 

Robbery committed on a ship belonging to subjects of a foreign 
State by one not a citizen of the United States, is a crime only against 
such foreign State, and not punishable in trie courts of the United 
States. 

U. S. v. Palmer, 3 Wheaton, 610; U. S. v. Kessler, Baldwin, 15, 22. 

Murder committed at sea on board a foreign vessel is not punishable 
by the laws of the United States if committed by a foreigner upon a 
foreigner, but otherwise as to piracy, for that is a crime within the 
acknowledged reach of the punishing power of Congress. In II. S. v. 
Bowers (5 Wheaton, 198), the court said: 

Nor is it any objection to this opinion, that the law declares murder to be piracy. 
These are things so essentially different in their nature, that not even the omnipotence 
of legislative power can confound or identify them. Had Congress, in this instance, 
declared piracy to be murder, the absurdity would have been felt and acknowledged ; 
yet with a view to the exercise of jurisdiction, it would have been more defensible 
than the reverse, for in one case it would restrict the acknowledged scope of its legiti- 
mate powers, in the other extend it. If, by calling murder piracy, it might assert a 
jurisdiction over that offense committed by a foreigner in a foreign vessel, what offense 
might not be brought within their power by the same device? The most offensive 
interference with the government of other nations might be defended on the precedent. 
Upon the. whole, I am satisfied that Congress neither intended to punish murder in 
cases with which they had no right to interfere, nor leave unpunished the crime of 
piracy in any cases in which they might punish it. 

By high seas are meant all tidewaters below low-water mark. 

U. S. v. Pirates, 5 Wheaton, L84; t T . S. v. Wiltberger, 5 Wheaton, 70, 94. 

Where an American citizen has discovered an unoccupied guano 
island, which the President under authority of Congress has recog- 
nized as part of the United States, Congress may ordain that crimes 
committed there shall be considered as though committed on a 
domestic vessel on the high seas. 

Jones v. U. S., 137 U. S., 202. 

The law of nations requires every national goA r ernment to use 
"due diligence" to prevent a wrong being done within its own 
dominion to another nation with which it is at peace, or to the 
people thereof: and because of this the obligation of one nation to 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 7 

punish those who, within its own jurisdiction, counterfeit the money 
of another nation has long been recognized. 
U. S. v. Arizona, 120 U. S., 484. 

And this applies with equal force to counterfeiting the securities 
of a foreign nation. 

U. S. r. White, 27 Fed. Rep., 201. 

And to counterfeiting notes of a foreign bank or corporation, or 
having in possession the plates from which may be printed counter- 
feits of the notes of foreign banks or corporations, whether such 
securities are national, municipal, or corporate. 

U. S. v. Arizona, 120 U.S.. 483. 

The power of the United States to pass and enforce a statute pro- 
tecting rights secured by the law of nations does not prevent a State 
from providing punishment for the same thing. 

V. S. v. Arizona, 120 U. S., 487. 
People v. McDonnell, 80 Cal., 285. 

CLAUSE II. 

To declare war, grant letters of marque and reprisal, and make rules concerning 
captures on land and water. 

War is " that state in which a nation prosecutes its right by force." 

The Prize Cases, 2 Black, 635, 666. 

It may exist without being declared, through the hostile acts of a 
foreign power or through armed insurrection, and may then be recog- 
nized and repelled by the President as Commander in Chief of the 
Army and Navy. 

The Prize Oases, 2 Black, 635, 668. 

The rule that in the enforcement of provisions guaranteeing civil 
rights, Congress is limited to the enactment of legislation corrective 
of any wrong committed by the States and not by the individuals, 
does not apply to those cases in which Congress is clothed with direct 
and plenary powers of legislation over the whole subject, accompanied 
with an express or implied denial of such powers to the States, as in 
the regulation of commerce, ■ * * * the coining of money, the 
declaring of war, etc. In these cases Congress has power to pass laws 
for regulating the subjects specified in every detail and the conduct 
and transactions of individuals in respect thereof. 
Civil Rights Cases, 109 U. S., 18. 

The existence of war and the restoration of peace are to be deter- 
mined by the political department of the Government, and such 
determination is binding and conclusive upon the courts, and deprives 
the courts of the power of hearing proof and determining as a ques- 
tion of fact either that war exists or has ceased to exist. 

Perkins v. Rogers, 35 Ind., 167. 

In this case the court said: 

The war-making power is, by the Constitution, vested in Congress, and the Presi- 
dent has no power to declare war or conclude peace, except as he may be empowered 
by Congress. 



8 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

When Congress declares war, by that declaration it puts in force 
the laws of war; and the war powers of the Government, which are 
not to be exercised, under the Constitution, in time of peace, now 
come into full force, by virtue of the Constitution, and are to be 
exerted by the President and Congress. After the declaration of 
war, every act done in carrying on the war is an act done by virtue 
of the Constitution, which authorized the war to be commenced. 
Every measure of Congress, and every executive act performed by 
the President, intended and calculated to carry the w r ar to a success- 
ful issue, are acts done under the Constitution; whether the act or 
the measure be for the raising of money to support armies, or a 
declaration of freedom to fill their ranks and weaken the enemy; 
whether it be the organization of military tribunals to try traitors, 
or the destruction of their property by the advancing army, without 
due process of law; and the validity of such acts must be determined 
by the Constitution. 

McCormick v. Humphrey, 27 Ind., 154. 

By the Constitution, Congress alone has the power to declare a 
national or foreign war. It can not declare war against a State, or 
any number of States, by virtue of any clause in the Constitution. 
The Constitution confers on the President the whole executive power. 
He is bound to take care that the laws be faithfully executed. He is 
Commander m Chief of the Army and Navy of the United States, 
and of the militia of the several States when called into the actual 
service of the United States. 

The Brig Amy Warwick, 2 Black (U. S.), 668. 

It is the exclusive province of Congress to declare war, but the 
right to repel invasions arises from self-preservation and defense, 
which is a primary law of nature and constitutes part of the law of 
nations. It. therefore, becomes the duty of a people, and particu- 
larly of the Executive Magistrate, who is at their head, and Com- 
mander in Chief of the forces by sea and land, to repel aggressions 
and invasions. 

People v. Smith (II. S. Gir. Ct. 1806), 3 Wheel. Grim. (N. Y.\ 100; 27 Fed. 
Cas., No. 16342. 

Letters of marque and reprisal are sometimes issued with a view 
to obtain redress for some national injury without resort to further 
hostile measures. Unless rules are made concerning captures and 
confiscations, no private citizen can enforce rights of forfeiture, 
either with or without judicial assistance. A declaration of war is 
not an expression of the will of Congress that reprisals may be made. 
Brown v. U. S., 8 Cranch, 110. 

In the absence of an act of Congress there is no right to prize in 
property captured by vessels of the United States. 

While the American colonies were a part of the British Empire the English mari- 
time law, including the law of prize, was the maritime law of this country. From 
the close of the Revolution down to this time it has continued to be our law, so far as 
it is adapted to the altered circumstances and condition of the country, and has not 
been modified by the proper national authorities. In our jurisprudence there are, 
strictly speaking, no droits of admiralty. The United States have succeeded to the 
rights of the Crown. No one can have any right or interest in any prize except by 
their grant or permission. All captures made without their express authority inure 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 9 

ipso facto m their benefit. Whenever a claim is set up its sanction by an act of < !on- 
gress must be shown. If no such act can be produced the alleged right does not 
exist. The United States take captured property, not as droits, but strictly and 
solely jure reipublicse. (The Sirrv, 13 Wallace, 392. See also The Hampton, 5 
Wallace, 376.) 

But as a legitimate means of prosecuting war the property of a 
belligerent may be seized and confiscated, and disposed of abso- 
lutely at the will of the captor. 

Miller v. U. S., 11 Wallace, 268. 
Tyler v. Defrees, 11 Wallace, 331. 

The power given by this clause is granted in the largest terms, and 
without any expressed limitation. By section 2 of the act of March 
3, 1863, providing "that the Secretary of the Navy or the Secretary 
of War shall be, and they, or either of them, are hereby authorized 
to take any captured vessel, any arms or munitions of war, or other 
material for the use of the Government; and when the same shall 
have been taken, before being sent in for adjudication, or afterwards, 
the department for whose use it was taken shall deposit the value of 
the same in the Treasury of the United States, subject to the order 
of the court in which prize proceedings shall be taken in the case; 
and when there is a final decree of distribution in the prize court, or 
if no proceedings in prize shall be taken, the money shall be credited 
to the Navy Department, to be distributed according to law," the 
authority of Congress was not exceeded. 

Appropriation of captured property by the War and other departments, 10 
Op. Atty. Gen., 519. 

War gives to the sovereign full right to take the persons and con- 
fiscate the property of the enemy wherever found. The investiga- 
tions of this rigid rule, which the humane and wise policy of modern 
times has introduced into practice, will more or less affect the exer- 
cise of this right, but can not impair the right itself. That remains 
undiminished, and when the sovereign authority shall choose to 
bring it into operation, the judicial department must give effect to 
its will. But until that will shall be expressed, no power of con- 
demnation can exist in the court. 

In Brown v. U. S. (8 Cranch, 122) the court said: 

It would be restraining this clause within narrower limits than the words them- 
selves import to say that the power to make rules concerning captures on land and 
water is to be confined to captures which are extraterritorial. If it extends to rules 
respecting enemy property found within the territory, then we perceive an express 
grant to Congress of the power in question as to an independent substantial power, 
not included in that of declaring war. 

And, again, page 125: 

That the declaration of war has only the effect of placing the two nations in a state 
of hostility, of producing a state of war. of giving those rights which war confers; 
but not of operating, by its own force, any of those results, such as a transfer of prop- 
erty, which are usually produced by ulterior measures of government, is fairly 
deducible from the enumerated powers which accompany that of declaring war. 

The mere declaration ol war does not confiscate enemy property 
or debts due to an enemy, nor does it vest the property or debts in 
the Government, as to support judicial proceedings for the confisca- 
tion of property or debts, without the expression of the will of the 
Government, through its proper department to that effect. Under 



10 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

the Constitution of the United States, the power of confiscating 
enemy property and debts due to an enemy is in Congress alone. 
Butler v. Butler, 9 Blatchf. (U. S.), 456; 4 Fed. Cas. Xo. 1903. 

Enemy property found within the United States on the breaking 
out of war cannot be confiscated without an act of Congress authoriz- 
ing such confiscation. 

Wagner v. Schooner Juanita, Newb. Adm.. 352; 28 Fed. Cas. Xo. 17039. 
U. S. v. Stevenson, 3 Ben. (U. S.), 119: 27' Fed. Cas. No. L6396. 
U. S. v. 1,756 Shares of Capital Stork. 5 Blatcbi. (IT. S-), 231; 27 Fed. 0as>. 
No. 15961. 

The act of Congress of July 13, 1861, authorizing the President to 
proclaim and declare "the inhabitants" of certain States "or any 
section or part thereof," to be in a state of insurrection against the 
United States, and thereupon all commercial intercourse, by and 
between the same and the citizens thereof and the citizens of the rest 
of the United States, shall cease and be unlawful so long as such 
condition of hostility shall continue; and all goods, etc., coming from 
said State or section into the other parts of the United States, and all 
proceeding to such State or section, by land or water, shall, together 
with the vessel or vehicle conveying the same, or conveying persons 
to or from such State or section, be forfeited to the United States, 
was held to be a lawful valid exercise of legislative power; for the Con- 
gress of the United States was not, by the rebellion, deprived of the 
authority to legislate in this manner with a view to its suppression. 

Brown v. Hiatt, 1 Dill (U. S.), 372; 4 Fed. Cas., No. 2011. 
The Ned, 1 Blatchf., Prize Cas., 119; 17 Fed. Cas., No. 10078. 

The act of Congress of July 17, 1862, providing that "all slaves 
of persons who shall hereafter be engaged in rebellion against the 
Government of the United States, or who shall in any way give aid 
or comfort thereto, escaping from such persons and taking refuge 
within the lines of the Army; and all slaves captured from such 
persons, or deserted by them, and coming under the control of the 
Government of the United States, and all slaves of such persons 
found or being within any place occupied by rebel forces and after- 
wards occupied by the forces of the United States, shall be deemed 
captures of war, and shall be forever free of their servitude and 
not again held as slaves," was held to be valid, as a state of war 
existed. 

Bine v. Parker, 63 N. Car., 131. 

This right of confiscation exists in favor of the United States in 
respect to its citizens engaged in rebellion against its authority. 

The Prize Cases, 2 Black, 635, 673. 
The Grapeshot, 9 Wall., 129, 132. 

As a war measure the slaves of persons in rebellion may be given 
their freedom. 

Slabach v. Cushman, 12 Fla., 472. 
Dorris v. Grace, 24 Ark., 326. 
Weaver v. Lapsley, 42 Ala., 601. 
Hall v. Keese, 31 Texas, 504. 

When war exists the Government possesses and may exercise all 
those extreme powers which any sovereignty can wield under the 



CONSTITUTIONAL SOURCES OF THE LAWS OP WAR. H 

rules of war recognized by the civilized world. Among these is the 
power to acquire territory either hy conquest or by treaty. 
Am. Ins. Co. v. Canter, 1 Pet,, 511, 542. 

The power to declare war was not conferred upon Congress for 
the purpose of aggression or aggrandizement but to enable the Gen- 
eral Government to vindicate by arms, if it should become necessary, 
its own rights and the rights of its citizens. A war. therefore, 
declared by Congress can never be presumed to be waged for the 
purpose of conquest or the acquisition of territory; nor does the law 
declaring the w r ar imply an authority to the President to enlarge 
the limits of the United States by subjugating the enemy's country. 
The United States, it is true, may extend its boundaries by conquest 
or treaty, and may demand the cession of territory as the condition 
of peace, in order to indemnify its citizens for the injuries they have 
suffered or to reimburse the Government for the expenses of the 
war. But this can be done only by the treaty-making power or the 
legislative authority, and it is not a part of the power conferred 
upon the President by the declaration of war. 
Fleming v. Page, 9 Howard, 614. 

As a limitation upon the power of Congress, this distinction may, 
practically, be unimportant. As every war m which the country 
may be engaged must be regarded by all branches of the Government, 
and even by neutrals, as a just war, and as nations can readily cloak 
a spirit of rapacity and aggression under professions of justice and 
moderation, it is at all times easy, should our country be actuated by 
such a spirit, to declare an aggressive war, to be undertaken in self- 
defense and an intended conquest to be desired only as a compensa- 
tion for past or security against future injuries. But the distinction 
is important when a court is asked to presume that conquest was 
the object of the war. Under our Government, at least, such a 
presumption can not be indulged. 

U. S. v. Costillero, 2 Black (U. S.), 355. 

This clause of the Constitution gives Congress the power to estab- 
lish provisional courts in conquered territory. 

Jecker i>. Montgomery, 13 Howard, 498. 
The Grapeshot, 9 Wallace, 129. 

Also to create military commissions for the trial of military and 
other offenses in districts where the civil law is displaced by w T arlike 
operations. But there is and can be no power to displace the Con- 
stitution where the civil courts are discharging their functions and 
can enforce them. 

Exparte Milligan, 4 Wallace, 2. 

As to the power of Congress to establish military tribunals, Chief 
Justice Chase, in an opinion concurring in the order made in the 
cause, but not concurring in some particulars with the opinion of the 
court, said: 

What we have already said sufficiently indicates our opinion that there is no law 
for the government of the citizens, the armies or the navy of the United States, within 
American jurisdiction, which is not contained in or derived from the Constitution. 
And whenever our Army or Navy may go beyond our territorial limits, neither can 
go beyond the authority of the President or the legislation of Congress. There are 



12 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

under the Constitution three kinds of military jurisdiction: One to be exercised both 
in peace and war; another to be exercised ii! time of foreign war within the boundaries 
of the United States, or in time of rebellion and civil war within States or districts 
occupied by rebels treated as belligerents; and a third to be exercised in time of in- 
vasion or insurrection within the limits of the United States, or during rebellion 
within the limits of States maintaining adhesion to the National Government when 
the public danger requires its exercise. The first of these may be called jurisdiction 
under military law, and is found in acts of Congress prescribing rules and articles of 
war, or otherwise providing for the government of the national forces: the second may 
be distinguished as military government, superseding, as far as may be deemed expe- 
dient the local law, and exercised by the military commander under the direction of 
the President, rath the express or implied sanction of Congress; while the third may 
be denominated martial law proper, and is called into action by Congress, or tem- 
porarily, when the action of Congress can not he invited, and in the case of justifying 
or excusing peril, by the President, in times of insurrection or invasion, or of civil 
or of foreign war, within districts or localities where ordinary law no longer ade- 
quately secures public safety and private rights. We think that the power of Con- 
gress, in such times and in such localities, to authorize trials for crimes against the 
security and safety of the national forces, may be derived from its constitutional au- 
thority" to raise and support armies and to declare war, if not from its constitutional 
authority to provide for governing the national forces. 

Ex parte Milligan, 4 Wallace, HI . 

Ex parte Vallandigham, 5 West, L. Month., 37: 28 Fed. Cas., No. I681(i. 

The persjns charged with the assassination of the President in the 
city of Washington, on April 14, 1865, were lawfully tried before a 
military tribunal. 

Military Commissions, 11 Op. Atty. Gen., 297. 

The powers given by this clause may be exercised when the 
necessity for their exercise is called out by domestic insurrection and 
internal civil war. 

Tyler v. Defrees, 11 Wall., 345; 
Miller v. U. S., 11 Wallace, 292. 

The general question whether the rules and doctrines of inter- 
national law were at all applicable to the Civil War, or were questions 
arising out of it to be wholly determined by the municipal law, first 
came before the Supreme Court of the United States in the case of 
The Brig Amy Warwick (2 Black, (U. S.), 635). It has since been 
frequently before that tribunal : 

See The Venice, 2 Wallace, 258; 
Mrs. Alexander Cotton, 2 Wallace, 404; 
The Hampton, 5 Wallace, 372; 
The William Bagaley, 5 Wallace. 377: 
Ouachita Cotton, 6 Wallace, 521; 
Hanger v. Abbott, 6 Wallace, 532; 
Cappell v. Hall, 7 Wallace, 542; 
McKee v. U. S., 8 Wallace, 163; 
The Grapeshot, 9 Wallace, 129. 

"These cases all apply or declare to be applicable to the Rebellion, the general 
doctrines of public law which govern in wars between independent nations. Of 
course, the authority of Congress to modify these doctrines as applied to States in 
insurrection and the inhabitants thereof would not, probably, he disputed. In 
determining questions arising out of the Rebellion, the courts of the United States 
will first inquire what legislation has the Congress of the United States enacted 
respecting such questions. If any, the courts will be governed by it so far as it is 
within the constitutional competency of Congress. If none, then the general rules 
and doctrines of international law will be resorted to by the courts to determine the 
rights of the parties. What exceptions to the application of these rules and doctrines 
arising out of the peculiar nature of our Government and of the war, must necessarily 
or should properly be made, can not well be determined in advance." (Phillips v. 
Hatch, 1 Dill (U. S.), 571; 19 Fed. Cas. No. 11094.1 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAS. 13 

A declaration of war by competent authority puts an end to all 
rights of action as between the citizens of the respective belligerent 
powers, from its date to the conclusion of peace; suspends the running 
of the statute of limitations, and also the running of interest upon 
debts between citizens of the respective, belligerents. 

Jackson Ins. Co. v. Stewart, 1 Hughes (U. S.), 310; 13 Fed. Cas., No. 7152. 

The act of Congress of June 11, 1864, enacting that whenever 
'' after such action — civil or criminal — shall have accrued, such 
person can not, by reason of such resistance of the laws, or such 
interruption of judicial proceedings, be arrested or served with process 
for the commencement of the action, the time during which such 
person shall so be beyond the reach of legal process shall not be 
deemed or taken as any part of the time limited by law for the com- 
mencement of such action," was held constitutional as necessarily 
implied from the powers to make war and suppress insurrections. 

Stewart v. Kahn, 11 Wallace, 504; Mayfield v. Richards, 115 U. S., 137. 

A State statute providing that " there shall be levied and collected 
a capitation tax of $1 upon every person leaving the State by any 
railroad, stage coach, or other vehicle engaged in the business of 
transporting passengers for hire," and that the proprietors, owners, 
and corporations so engaged should pay the said tax of $1 for each 
and every person so conveyed or transported from the State, was 
held to be invalid. 

Crandall v. Nevada, 6 Wallace, 44. 

Wherein the court said : 

The Federal power has a right to declare arid prosecute wars, and as a necessary 
incident, to raise and transport troops through and over the territory of any State of 
the Union. If this right is dependent in any sense, however, limited upon the pleasure 
of a State, the Government itself may be overthrown by an obstruction to its exercise. 
Much the largest part of the transportation of troops during the late rebellion was by 
railroads, and largely through States whose people were hostile to the Union. If the 
tax levied by Nevada upon railroad passengers had been the law of Tennessee, en- 
larged to meet the wishes of her people, the Treasury of the United States could not 
have paid the tax necessary to enable its armies to pass through her territory . 

CLAUSE 12. 

To raise and support armies, but no appropriation of money to that use shall be for 
a longer term than two years. (See Story on the Constitution, sec. 1188.) 

The execution of this power "to raise and support armies," as well 
as that "to make rules for the government and regulation of the 
land and naval forces," falls within the line of the duties of Congress, 
and the control of Congress over the subject is plenary and exclusive. 
It can determine, without question from any State authority, how 
the armies shall be raised, whether by voluntary enlistment or forced 
draft, the age at which the soldier shall be received, and the period 
for which he shall be taken, and the compensation he shall be allowed, 
and the service to which he shall be assigned. 

Tarbles' Case, 13 Wallace, 408. 

The power of Congress to raise and support armies, to provide for 
'•ailing forth the militia to execute the laws of the Union, suppress 
insurrections, and repel invasions, and to provide for organizing, 



14 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

arming, and disciplining the militia, and for governing such part of 
them as may be employed in the service of the United States is clear 
and indisputable. The language used in the Constitution in making 
this grant of power is so plain, precise, and comprehensive as to leave 
no room for doubt or controversy as to where the supreme control 
over the military force of the country resides. This power of com- 
manding the service of the militia in times of insurrection and in- 
vasion is a natural incident to the duties of superintending the com- 
mon defense, and of watching over the internal peace of the country, 
and was wisely vested in Congress by the framers of the Constitution. 

In re Gruier, 16 Wis., 431. 

Full power of legislation in the matter of increase and reduction 
of the Army is with Congress, and Congress may ratify the action of 
the President in mustering officers out of the service, and validates 
the act although it may not have had full prior legal authority. 
Streets. U. S., 133 U. S., 307. 

The act of July 15, 1870, provided for a reduction of the Army to 
a force of 30,000 men. So far as enlisted men were concerned, the 
method of reduction was left entirely to the discretion of the Presi- 
dent. So far as commissioned officers were concerned, four methods 
were prescribed. The first was voluntary resignation, accom- 
panied by the inducements of an honorable discharge and one year's 
pay and allowances. The second was by placing officers upon the 
retired list, and for that purpose the limited number of the retired 
list was extended to 300. The third was by sending officers reported as 
" unfit for the proper discharge of their duties" (but who were not 
entitled to be placed upon the retired list because their inability was 
not incurred "in the line of their duty") before a military board, 
upon whose unfavorable report they were to be mustered out. The 
fourth was by the muster out of all officers who remained super- 
numerary on the 1st day of January, 1871. The statute was neither 
in conflict nor in pari materia with the act of July 17, 1866, providing 
that in time of war the President may dismiss an officer from the 
service at any moment and for any cause, that in time of peace he 
may dismiss him for cause, with the cooperation of a court-martial, or 
remove him without cause with the consent of the Senate, but was 
an exercise of the power "to raise and support armies." 
Street v. U. S., 24 Ct. 01., 230. 

Who shall compose these armies, and how they shall be raised, 
must be determined by law, i. e., by Congress. 

The act of Congress entitled "An act for enrolling and calling out 
the national forces, and for other purposes," of March 3, 1863, known 
as the "conscription act," was held to be valid. 
Kneedler v. Lane. 45 Pa. St., 238. 

When the inhabitants of a country who are liable to be called into 
military service have been enrolled, and such of them as are to render 
the service have been ascertained by draft, and the persons thus 
drafted have been lawfully required to attend at an appointed time 
and place of muster, those who disobey are amenable to military 
discipline and military organization, unless the subject has been 
otherwise legislatively regulated. Where the Government whose 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 15 

authority they have set at naught may, by military force, compel 
their subjection to such discipline and organization, the system is 
conscription. But where, though their offense is cognizable by a 
military tribunal, their disobedience is punishable only by a certain 
pecuniary or other penalty, and they can not be further subjected to 
military discipline or detention, the system is not a conscription, as 
the word is now ordinarily understood. 

McCall's Case, 5 Phila. (Pa.), 259; 15 Fed. Cas., No. 8669. 

And under the twofold power to raise armies and to call forth and 
organize the militia of the several States, both regular national 
armies and occasional militia forces from the several States, may be 
raised, either by conscription or in other modes. The power to raise 
them by conscription may, at a crisis of extreme exigency, be indis- 
pensable to national security. Idem. 

The Confederate conscript act was held to be valid under a similar 
provision in the Confederate States constitution. 

Ex parte Coupland, 26 Tex., 386. 
Ex parte Hill, 38 Ala., 429. 

It is in the power of Congress to declare who may be enlisted, and 
the regulations established by the laws of Congress upon the subject 
are controlling authority. 

Riellys' Case, 2 Abb., Pr. N. S. (N. Y.), 334. 

Minors may be enlisted without the consent of their parents or 
guardians when the law fails to require such consent. 

Ex parte Brown, 5 Cranch C. C, 554. 
U. S. v. Bainbridge, 1 Mason, 71. 

Congress has power to enlist minors in the Army without the 
consent of their parents. 

U. S. v. Bainbridge (supra), 24 Fed. Cas., No. 14497. 
U. S. v. Blakeney, 3 Gratt. (Va.), 387. 

And the same rule applies to enlistments in the Navy. 

U. S. v. Stewart, Crabbe, 265; 27 Fed. Cas., No. 16, 400. 
Com. v. Murray, 4 Binn. (Pa.), 487. 
Com. ». Gamble, 11 S. & R. (Pa.), 93. 

The last two cases cited refer to enlistments in the Marine Corps. 

Congress has power to make and authorize such orders and regu- 
lations as may be necessary to prevent those who are liable by law to 
military service, from evading that duty; and an order to prevent 
them from leaving the country and State, to avoid an impending 
draft, would be necessary for that purpose. 
Allen v. Colby, 47 N. H., 547. 

Enlistment is not a voidable contract. It changes the status of 
the person enlisting, and a minor is not entitled to his discharge 
because he has falsely represented himself to be of full age. 

In re Morisev, 137 IT. S., 157. 
In re Grimley, 137 U. S., 147. 

All persons, capable of performing military duty, irrespective of 
age or of previous exemptions, may be compelled to do so under 
laws for the purpose; and it was so held in the Confederate States 
where the question would be the same. 



16 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

Ex parte Coupland, 26 Tex., 386. 

Barber v. Irwin, 34 Ga., 27. 

Ex parte Tate. 39 Ala.. 254. 

See also Kneedler v. Lane, 45 Pa. Stat., 238. 

CLAUSE 13. 

To provide and maintain a navy. 

The rules respecting armies apply equally to the Navy. The 
powers of enlistment and conscription arc the same, but conscrip- 
tion must operate under prescribed and impartial rules. No im- 
pressment of seamen is allowed as was formerly practiced in England. 
(See Cooley's Constitutional Limitations, 6th ed.. p. 363.) 

Legislative authority in Congress may, in some instances, be 
derived from more than one grant in the Constitution, as a river may 
receive its waters through streams flowing from different sources. 
Thus the authority to build and equip vessels of war is, doubtless, 
implied in the power to '' declare war, " but the same authority is 
more directly conferred by the power to ''provide and maintain a 
navy." 

U. S. w. Burlington, etc., Ferry Co., 21 Fed. Rep., 340. 

This clause authorizes the Government to buy or build any number 
of steam or other ships of war, to man, arm, and otherwise prepare 
them for war, and to dispatch them to any accessible part of the 
globe. 

U. S. v. Rhodes, 1 Abb. (U. S.), 28, 27 Fed. Cas., No. 16151. 

Under this power the Naval Academy has been established. 

CLAUSE 14. 

To make rules for the government and regulation of the land and naval forces. 

These rules must not be inconsistent with the proper authority of 
the President as Commander in Chief of the Army and Navy, which, 
being conferred by the Constitution, can not be taken away by 
Congress. 

Art. II, sec. 2. See Swain v. U. S., 28 Ct. 01., 173. 

The execution of this power falls within the line of the duties of 
Congress, and its control over the subject is plenary and exclusive. 
It can provide the rules for the government and regulation of the 
forces after they are raised, define what shall constitute military 
offenses, and prescribe their punishment. No interference with the 
execution of this power of the National Government in the forma- 
tion, organization, and government of its armies by any State officials 
would be permitted without greatly impairing the efficiency of, if it 
did not utterly destroy, this branch of the public service. 

Tarbles' Case, 13 Wallace, 408. 

A State can not in any particular, either through its legislative or 
judicial department, regulate or circumscribe the powers of the United 
States in respect to a matter the control of which is vested solely in 
the general Government. The wisdom, expediency, or justness of the 
military laws, rules, and regulations adopted and prescribed by the 
United States are no concern of the State. The proper enforcement 



CONSTITUTIONAL SOUECES OF THE LAWS OF WAR. 17 

of such laws, rules, and regulations can not be measured and deter- 
mined by State laws. 

In re Fair, 100 Fed. Rep., 157. 

Rules promulgated by the President without legislative authority 
are without legal validity and in derogation of the powers of Congress. 

The constitutional power of the President to command the Army 
and Navy, and of Congress "to make rules for the government ami 
regulation of the land and naval forces," are distinct; the President 
can not by military orders evade the legislative regulations; Congress 
can not by rules and regulations impair the authority of the President 
as Commander in Chief. 

Swains. U. S., 28 Ct. 01., 173. 

The powers conferred upon Congress "to provide and maintain a 
navy/' "to make rules for the government of the land and naval 
forces"; the clause which requires a presentment of a grand jury in 
cases of capital or otherwise infamous crimes, expressly excepting 
from its operation " cases arising in the land and naval forces"; and 
the section declaring that "the President shall be Commander in 
Chief of the Army and Navy of the United States and of the militia 
of the several States when called into the actual service of the United 
States," shows that Congress has the power to provide for the trial 
and punishment of military and naval offenses in the manner then 
and now practiced by civilized nations; and that the power to do 
so is given without any connection between it and the article of the 
Constitution defining the judicial power of the United States. The 
two powers are shown to be entirely independent of each other. 

Dynus v. Hoover, 20 Howard, 78. 

Congress has power to confer jurisdiction upon military and naval 
authorities to try by court-martial military and naval offenses, and 
this jurisdiction may be exercised both in peace and war. 

In re Bogart, 2 Sawy. U. S., 396; 3 Fed. Cas., No. 1596. 

TJ. S. v. McKenzie, 1 N. Y. Leg. Obs., 371; 30 Fed. Cas., No. 18313. 

Congress may enact a statute for the punishment of an offense 
committed by a marine on board a ship of war wherever that ship 
may lie. 

U. S. v. Bevans, 3 Wheaton, 390. 

In a time of war, when portions of hostile territory are in the 
military occupation of Federal forces, the President as Commander 
in Chief may appoint provisional courts for the determination of 
controversies within such territory and for the administration of 
justice. 

Jacker v. Montgomery, 13 Howard, 498. 
The Grapeshot, 9 Wall., 129. 
Edwards v. Tanneret, 12 Wall., 446. 

But such courts, established on foreign soil, are mere agents of the 
military power to assist in preserving order and protecting tin- 
inhabitants in their persons and property^ They can not adjudicate 
upon questions of prize or decide upon the rights of the United States 
or of individuals. 

Jecker v. Montgomery, 13 Howard, 498. 
S. Doc. 86, 65-1 2 



18 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

It is competent for Congress, by the rules and articles of war, to 
provide for the ordering of courts-martial for the trial of offenses 
arising in the military and naval service 
Re Bogart, 2 Sawyer, 396. 

These courts, except as may be otherwise provided, will execute 
their duties and regulate their mode of proceeding by the customary 
military law. 

Martin v. Watt, 12 Wheat., 19. 

But a person not enrolled or liable- to be enrolled for service can 
not be subjected to the jurisdiction of such courts. 

Wise v. Withers, 3 Cranch, 331. 

Nor can the courts proceed against those who are liable without 
giving notice and an opportunity of defense to the accused. 
Meade v. Deputy Marshal, 2 Car. Law Rep., 320. 

Where a court-martial proceeds without authority and restrains a 
person of his liberty or inflicts punishment, all the parties responsi- 
ble for the action are liable to suits therefor in the common law courts. 

Milligan v. Hovey, 3 Bias., 13. 
Martyn v. Fabrigas, Cowp., 161. 

The jurisdiction of such courts may always be inquired into by 
civil courts and a person held under their rules discharged if juris- 
diction is wanting. 

In re Grimley, 137 U. S., 147. 

Offenses against martial law and the laws of war and all acts not 
justified by the laws of war which are calculated to impede or obstruct 
the operations of the military authorities or to render abortive any 
attempt by the Government to enforce its authority may be pun- 
ished by military courts or commissions organized by the President 
as Commander in Chief or by the immediate military commander or 
established under the authority of Congress. But these tribunals can 
not try offenses against the general laws when the courts of the land 
are in the performance of their regular functions and no impediment 
exists to a lawful prosecution there. 
Ex parte Milligan, 4 Wall., 2. 

An impediment does exist, however, when martial law is lawfully 
declared. 

Luther v. Borden, 7 How., 1. 

And this creates an exception to the general rule that the military 
in times of peace must be in strict subordination to the civil power, 
and in times of war also, except on the theater of warlike movements. 
1 Bl. Com., 413-115. 

The military tribunals may also take cognizance of offenses alleged 
to have been committed by soldiers upon citizens within the field of 
military operations against an armed rebellion while the civil law is 
for the time suspended, and to the exclusion of the ordinary juris- 
diction when restored. 

Coleman v. Tenn., 97 U. S., 509. 



CONSTITUTIONAL SOUECES OF THE LAWS OF WAR. 19 

The fifth article of amendment to the Constitution, which declares 
that "no person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury," expressly excepts "cases arising in the land or naval forces," 
and leaves such cases subject to the rules for the government and 
regulation of those forces which, by the eighth section of the first 
article of the Constitution, Congress is empowered to make. 

Kurtz v. Moffitt, 115 U. S., 500. 

The question who shall act on courts-martial for the trial of 
offenders belonging to the various branches of the Army of the 
United States is one entirely for Congress to determine. 
McClaughry v. Deming, 186 U. S., 69. 

The provision that "the judicial power of the United States shall 
be vested in one Supreme Court and in such inferior courts as the 
Congress may from time to tune ordain and establish," has no 
application to the abnormal condition of conquered territory in the 
occupancy of the conquering army. It refers only to courts of the 
United States, which military courts are not. 

Mechanics', etc., Bank v. Union Bank, 22 Wallace, 295. 

In this case the court said that the power to establish by military 
authority courts for the administration of civil as well as criminal 
justice in portions of the insurgent States, occupied by the national 
forces, is precisely the same as that which exists when foreign terri- 
tory has been conquered and is occupied by the conquerors. 

Affirming 25 La. Am., 387; see also Burke v. Tregre, 22 La. Am., 629. 

A writ of certiorari can not be issued by the Supreme Court of the 
United States to review the proceedings of a military commission. 
It is not in law or equity within the meaning of those terms as used 
in the Constitution, nor is a military commission a court within the 
meaning of the judiciary act of 1789. 

The appellate powers of the Supreme Court, as granted by the 
Constitution, are limited and regulated by the acts of Congress and 
must be exercised subject to the exceptions and regulations made by 
Congress. 

Ex parte Vallandigham, 1 Wallace, 251. 

CLAUSE 15. 

To provide for calling forth the militia to execute the laws of the Union, suppress 
insurrections, and repel invasions. 

The militia consists of those persons who under the law are liable 
to perform military duty, and who are enrolled and officered so as to 
be ready for service when called upon. (Cooley.) 

They are State forces until actually called into the service of the 
Union. 

It is within the authority of Congress under this clause to provide 
" that whenever the United States shall be invaded, or be in imminent 
danger of invasion from any foreign nation or Indian tribe, it shall be 
lawful for the President of the United States to call forth such number 
of the militia of the State or States most convenient to the place of 
danger, or scene of action, as he may judge necessary to repel such 



20 CONSTITUTIONAL SOUECES OF THE LAWS OF WAR. 

invasion, and to issue his order for that purpose to such officer or 
officers of the militia as he shall think proper,'' and under such a 
statute the authority to decide whether the exigency has arisen 
belongs exclusively to the President, and his decision is conclusive 
upon all other persons. 

Martin v. Mott, 12 Wheaton, 29. 
Luther v. Borden, 7 Howard, 45. 

The President may make his requisition directly upon the executive 
of the State, or upon the militia officers. Cases cited supra; also 
Houston v. Moore (5 Wheaton, 1). 

The power to provide for repelling invasions includes the power to 
provide against the attempt and danger of invasion as the necessary 
and proper means to effectuate the object. 
Martin v. Mott, 12 Wheaton, 29. 

Under these decisions (Martin v. Mott and Luther v. Borden), it 
would appear that "invasions" are not restricted to violations of 
territory, but might logically and essentially include violations of the 
right to proper activities on the part of the Government and of its 
citizens on the high seas in any part of the world. 

The power of Congress to suppress insurrection is not limited to 
victories in the field and the dispersion of insurgent forces. It carries 
with it inherently rightful authority to guard against an immediate 
renewal of the conflict, and to remedy the evils growing out of its rise 
and progress. 

Raymond v. Thomas, 91 U. S., 714. 
Stewart v. Kahn, 11 Wallace, 506. 

In the power to provide for calling forth the militia is necessarily 
included the power of inflicting a penalty on delinquents by the 
judgment of some court of the United States, and of carrying the 
judgment into effect by an execution. It is not an infringement of 
the rights of citizens of a State to proceed to the trial of delinquent 
militiamen by courts-martial. 

Duffield v. Smith, 3 S. and R. (Pa.), 593. 

The militia, as citizens, are peculiarly under the protection of the 
State sovereignty. They compose the only State force, and the 
genius of our Government forbids that they should be subjected to 
the military tribunals of the Federal Government, unless it be during 
those extraordinary occasions defined in the Constitution of the 
United States, when the public safety and the high behests of war 
demand the sacrifice. 

Mills v. Martin, 19 Johns (N. Y.), 24. 

A State statute providing that the officers and privates of the 
militia of that State, neglecting or refusing to serve when called into 
actual service, in pursuance oi any order or requisition of the President 
of the United States, should be liable to the penalties defined in certain 
acts of Congress, and also providing for the trial of such delinquents 
by a State court-martial, was held not to be repugnant to the Consti- 
tution and laws of the United States. 
Houston v. Moore, 5 Wheaton, 1. 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 21 

CLAUSE 16. 

To provide for organizing, arming, and disciplining the militia, and for governing 
such part of them as may be employed in the service of the United States, reserving 
to the States, respectively, the appointment of the officers and the authority of training 
the militia according to the discipline prescribed by Congress. 

Though the States have the appointment of the officers, the 
bodies of the militia called into the service of the United States and 
subject not only to the orders of the President as Commander in 
Chief, but also to those of any officer outranking their own, who may, 
under the authority of the Commander in Chief, be placed over them. 

An army obtained by conscription is not the miiitia, though con- 
scripted from it. 

See the discussion in Kneedler v. Lane (45 Pa. St., 238). 

Congress has power to provide for organizing, arming, and dis- 
ciplining the militia, and this power being unlimited, except in the 
two particulars of officering and training them, according to the dis- 
cipline to be prescribed by Congress, it may be exercised to any 
extent that may be deemed necessary by Congress. 

Houston v. Moore, 5 Wheaton, 16. 
Matter of Spangler, 11 Mich., 305. 

The power of the State governments to legislate on the same 
subjects having existed prior to the formation of the Constitution, 
and not having been prohibited by that instrument, it remains with 
the States, subordinate nevertheless to the paramount law of the 
General Government operating upon the same subject. But after 
a detachment of the militia has been called forth and has entered 
into the service of the United States, the authority of the General 
Government over such detachment is exclusive. 

Houston v. Moore, 5 Wheaton, 16. 

The power conferred upon Congress by this clause does not ex- 
clude State legislation upon the same subject unless the power 
conferred on Congress is actually exercised. 

People v. Hill, 126 N. Y., 503. 

In this case the court said: 

The power to control and organize the militia resided in the several States at the 
time of the adoption of the Constitution of the United States and was not taken away 
by that instrument. Ihe power of legislation over the subject after its adoption 
was concurrent in the States and in Congress, and the power of State legislation re- 
mained until Congress in the exercise of the power conferred upon it by the Con- 
stitution had legislated. State legislation in relation to the militia is only excluded 
when repugnant to or inconsistent with Federal legislation enacted within the pur- 
view of the power conf.rred by the Federal Constitution and there is authority for 
regarding the State legislation as inconsistent which undertakes to supplement laws 
passed by Congress co\ ering the subject of the power by annexing new qualifications 
or incidents not prescribed by the Federal law. 

The clause reserving "to the States, respectively, the appoint- 
ment of the officers" and the authority of framing the militia accord- 
ing to the discipline prescribed by Congress does not put any re- 
striction upon the States in respect to the concurrent legislation 
concerning the militia. 

Dunne v. Reapee. 94 111.. 130. 



22 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 



V 



Quoting with approval from the opinion of Story, J., in Houston 
Moore (5 Wheaton, 51): 

That reservation constitutes an exception merely from the power given to Congress 
"to provide for organizing, arming, and disciplining the militia. " and is a limitation 
upon the authority which would otherwise have devolved upon it as to the appoint- 
ment of officers. 

The power to determine who shall compose the militia is exclusive 
in Congress, as a power, when vested in the General Government, is 
not only exclusive when it is so declared in terms, or when the State 
is prohibited from the exercise of the like power, but also when the 
exercise of the same power by the State is superseded and neces- 
sarily impracticable and impossible after its exeicise by the General 
Government. Congress has provided for the national defense by 
establishing a uniform militia throughout the United States. 

In Opinion of Justices (14 Gray (Mass.), 619) the court said: 

We do not intend, by the foregoing opinion, to exclude the existence of a power 
in the State to provide by law for arming and equipping other bodies of men, for 
special service of keeping guard and making defense, under special exigencies, or 
otherwise in any case not coming within the prohibition of that clause in the Con- 
stitution, Article I, section 30, which withholds from the State the power to keep 
troops; but such bodies, however armed or organized, could not be deemed any part 
of the "militia" as contemplated and understood in the Constitution and laws of 
Massachusetts and of the United States, and as we understand in the question pro- 
pounded for our consideration. 

See also Tjler v. Pomeroy, 8 Allen (Mass.), 493. 

A State statute requiring aliens to do militia and patrol duty is not 
against the Constitution of the United States. 
Ansley v. Timmons, 3 McCord L. (S. Car.), 329. 

The governor of a State has no power to depose an officer or inter- 
fere with the organization of the regiment, to which he belongs, 
after such regiment is accepted and mustered into the service of the 
United States. Giving to the constitutional reservations in favor 
of the States the most liberal construction which can be claimed for 
them, they confer no right on the State authorities to disturb the 
organization of militia or volunteer regiments in the national service 
or to interfere in any way with the control which the President under 
the National Constitution and laws shall exercise over them. 
Case of Col. Weir, 10 Op. Atty. Gen., 279. 

The intent of the foregoing provisions, Articles X to XVI, in- 
clusive, is to render the Federal Government supreme in ail that per- 
tains to war, with subordinate authority in the States. To this end 
is a subsequent provision that "No State shall enter into any treaty, 
alliance, or confederation; grant letters of marque and reprisal." 
(Art. I, sec. 10, clause 1.) 

By this clause and section 2 of Article II, " He [the President] shall 
have power, by and with the advice and consent of the Senate, to 
make treaties,'' the States have surrendered the treaty-making power 
to the General Government, and have vested it in the President and 
Senate, and, when duly exercised by the President and Senate, the 
treaty resulting is the supreme law of the land, to which not only 
State laws but State constitutions are in express terms subordinated. 

In re Tiburcio Parrott, 1 Fed. Rep., 501. 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 23 

No power under the Government can make ''any treaty, alliance, 
or confederation," entered into by a State, valid, or dispense with 
the constitutional prohibition. 

Rhode Island v. Mass., 12 Peters, 724. 

By reason of this clause the confederation formed by Virginia and 
other States called the Confederate States of America, could not be 
recognized as having any legal existence. 

Williams v. Bruffy, 96 U. S., 183. 

To grant letters of marque and reprisal would lead directly to war. 
the power of declaring which is expressly given to Congress. 

Barron v. Baltimore, 7 Peters, 249. 

Still another provision to the same end is that "No State shall, 
without the consent of Congress * * * keep troops or ships of 
war in times of peace, enter into any agreement or compact with 
another State, or with a foreign power, or engage in war, unless 
actually invaded, or in such imminent danger as will not admit of 
delay.'' (Art. I, sec. 10, clause 3.) 

The agreements and compacts which may be entered into with the 
consent of Congress differ from the treaties, alliances, and confedera- 
tions which are absolutely forbidden, in this: The latter are made 
for perpetuity or for a considerable time, and generally have suc- 
cessive execution, while the former are made for temporary purposes 
and are perfected in their execution once for all. 

Holmes v. Jammison, 14 Peters, 540, 572. 
Virginia v. Tennessee, 148 U. S., 521. 
Wharton v. Wise, 153 U. S., 173. 
Virginia v. W. Va., 11 Wallace, 59. 
Green v. Biddle, 8 Wheaton, 85. 
Louisiana v. Texas, 176 U. S., 17. 

Active militia or National Guard, organized and enrolled under a 
State military code for discipline and not for military service, except 
in times of insurrection, invasion, and riots, the men comprising it 
coming from the body of the militia of the State, and, when not 
engaged at stated periods in drilling or training for military duty, 
returning to their usual vocations, subject to call when public exi- 
gencies require it, but not kept in service, like standing armies in 
times of peace, are not " troops'" within the meaning of this clause. 

Luther v. Borden, 7 Howard, 1. 
State v. Wagener, 74 Minn., 522. 

POWERS OF THE EXECUTIVE. 

ARTICLE II, SECTION 2. 

"The President shall be Commander in Chief of the Army and Navy of the United 
States, and of the militia of the several States, when called into the actual service of 
the United States." 

"In the distribution of political power between the great depart- 
ments of government, there is such a wide difference between the 
power conferred on the President of the United States and the 
authority and sovereignty which belong to the English Crown, that 
it would be altogether unsafe to reason from any supposed resem- 
blance between them, either as regards conquest in war or any 



24 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

other subject where the rights and powers of the executive arm of 
the Government are brought into question. Our own Constitution 
and form of government must be our only guide." (Fleming v. 
Page, 9 Howard, 618.) 
Said Hamilton in the Federalist, No. LX1X: 

The President is to be the Commander in ( 'hief of the Army and Navy of the United 
States. In this respect his authority would be nominally the same with that of the 
King of Great Britain, but in substance much inferior to it. It would amount to 
nothing more than the supreme command and direction of the military and naval 
forces, as first general and admiral of the confederacy; while that of the British King 
extends to the declaring of war and to the raising and regulating of fleets and armies, 
all of which, by the Constitution under consideration, would appertain to the Legis- 
ature. 

The power of the Executive to establish rules and regulations 
for the government of the Army is undoubted. The power to 
establish implies, necessarily, the power to modify or repeal, or 
create anew. The Secretary of War is the regular constitutional 
organ of the President for the administration of the Military Estab- 
lishment of the Nation; and rules and orders publicly promulgated 
through him must be received as the acts of the Executive, and as 
such are binding upon all within the sphere of his legal and con- 
stitutional authority. 

U. S. v. Eliason, 16 Peters, 302. 
Kurtz v. Moffitt, 115 U. S., 503. 

But this power is limited and does not extend to the making of 
provisions of a legislative nature. 

Navy Regulations, 6 Op. Atty. Gen., 10. 

Power of President to create a Militia Bureau in War Department, 10 Op. 
Atty. Gen., 14. 

While the President is made Commander in Chief by the Constitu- 
tion, Congress has the right to legislate 1 for the Army, not impairing 
his efficiency as such Commander in Chief, and when a law is passed 
for the regulation of the Army, having that constitutional qualifica- 
tion, he becomes as to that law an executive officer, and is limited in 
the discharge of his duty by tin 1 statute. 

McBlair v. U. S., 19 Ct. Cls., 541. 

The constitutional power of the President, to command the Army 
and Navy, and that of Congress "to make rules for the government 
and regulation of the land and naval forces," are distinct; Congress 
can not by rules and regulations impair the authority of the Presi- 
dent as Commander in Chief. 

Swain v. U. S., 28 Ct, Cls., 173. 

The power of command and control of the Army the framers of the 
Constitution placed in the hands of the President, with only two 
restrictions set upon it; that Congress should have power "to make 
rules for the government and regulation of the land and naval forces;" 
that the appointment of officers should be "by and with the advice 
and consent of the Senate." 

Street v. U. S., 24 Ct. Cls., 247. 

Whatever the President of the United States, as Commander in 
Chief, might do if personally present, may be done by the superior 



CONSTITUTIONAL SOUECES OF THE LAWS OF WAR. 25 

officer in command of any district unless restrained by orders or by 
the peculiar nature of the service in which he is engaged. 

Heft'ernian v. Porter, 6 Coldw. (Tenn.), 398. 

The duty and power of the President are purely military. As 
Commander in Chief he is authorized to direct the movements of the 
naval and military forces placed by law at his command, and to 
employ them in the manner he may deem most effectual to harass 
and conquer and subdue the enemy. He may invade the hostile 
country and subject it to the sovereignty and authority of the United 
States. But his conquests do not enlarge the boundaries of this 
Union no extend the operation of our institutions and laws beyond 
the limits before assigned to them by the legislative power. 

Fleming v. Page, 9 Howard, 615. 

"It is true that in the case in which these observations are made, the point to be 
determined was, whether enemies' territory which in the course of hostilities had 
come into our military possession, became a part of the United States, and subject t<> 
our general laws. But they are important to this case as defining the power of the 
President in war to be merely that of the military commander in chief; that territory 
can be acquired only by the treaty-making and legislative authority, and, conse- 
quently, that the fact that hostilities are by the military authority directed against 
a particular portion of the enemy's territory, can not be said to mate the acquisition 
of that territory the object of the war." ( U. S. v. Oostillero, 2 Black (U. S.), 358.) 

The right of the President temporarily to govern localities through 
his military officers he derives solely from the fact that he is Com- 
mander in Chief of the Army and is to see that the laws are executed; 
and he can exercise it to just the extent that, and no further than, 
by the laws of war a commanding general in the Army of the United 
States could do it. Where the laws are or may be executed without 
the interference of the President by his military authority he has 
no right thus to interfere. 

Griffin v. Wilcox, 21 Inch, 382. 

The right of the President as Commander in Chief of the Army 
and Navy of the United States under the Constitution to exercise 
government and control over Porto Rico did not cease or become 
defunct in consequence of the signature of the treaty of peace, nor 
from its ratification. It was settled by the judgment of the Supreme 
Court of the United States in a similar case, arising out of the en- 
forcement of local tariff laws in California subsequently to the cession 
of that territory and prior to any legislation with reference to it by 
Congress, that the civil government organized from a right of con- 
quest by tin 1 military officers of the United States was continued 
over the territory as a ceded conquest without any violation of the 
Constitution or laws of the United States. 
Cross v. Harrison, 16 Howard, 164. 

According to the well-settled principles of public law relating to 
territory held by conquest, and according to the adjudication of the 
Supreme Court in Cross v. Harrison (16 How., 164), the military 
authorities in possession, in the absence of legislation by Congress, 
may make such rules or regulations and impose such duties imposed 
upon merchandise imported into the conquered territory as they may 
in their judgment and discretion deem wise and prudent. 
Porto Rico, Duties, 22 Op. Atty. Gen., 561. 



26 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

The President had power to create military governments and to 
appoint provisional governors for States then lately in insurrection, 
but this did not of itself change the general laws then in force for 
the settlement of the estates of deceased persons, and did not remove 
from office those who were at the time charged by law with public 
duties in that behalf. 

Ketchum v. Buckley, 99 IT. 8., 190. 

Cross v. Harrison, 16 Howard, 189. 
Scott v. Billgerry, 40 Miss., 133. 

The establishment of a provisional court by a presidential procla- 
mation, upon the suppression of the rebellion, with authority, among 
other powers, to hear, try and determine all causes in admiralty, 
was an excise of the constitutional authority of the President, and 
Congress had power, upon the close of the war and the dissolution 
of the provisional court, to provide for the transfer of causes pending 
in that court and of its judgments and decrees to the proper courts 
of the United States. 

The Grapeshot, 9 Wallace, 131. 

Lewis v. Cocks, 23 Wallace, 469. 

Dooley v. U. S., 182 U. S., 234. 

Jecker v. Montgomery, 13 Howard, 498. 

See also Mechanics, etc., Bank v. L T nion Bank, 22 Wallace, 296, affirming 

25 La. Am., 387. 
See also Burke v. Tregre, 22 La. Am., 629. 

Upon the conqest of New Mexico in 1846, the commanding officer 
of the conquering army, in virtue of the power of conquest occupancy 
and with the sanction and authority of the President, ordained a 
provisional government for the country. The ordinance created 
courts with both civil and criminal jurisdiction. It did not under- 
take to change the municipal laws of the territory, but it established 
a judicial system with a superior or appellate court, and with circuit 
courts, the jurisdiction of which was declared to embrace, first, all 
criminal causes that should not be otherwise provided for by law, 
and, secondly, original and exclusive cognizance of all civil cases not 
cognizable before the prefects and alcaldes. But though these courts 
and this judicial system were established by the military authority 
of the United States, without any legislation of Congress, they were 
lawfully established. 

Leitensdoofer v. Webb, 20 Howard, 176. 

It is within the power of the President of the United States, as 
Commander in Chief, to validly convene a general court-martial 
even where the commander of the accused officer to be tried is not 
the accuser. 

Swain v. U. S., 165 U. S., 558. 

Runkee v. U. S., 19 Ct. CI., 409. 

See also approval of Court-Martial Sentence, 15 Op. Atty. Gen., 302. 

Martial rule can never exist when the courts are open, and in the 
proper and unobstructed exercise of their jurisdiction. 

Ex parte Milligan, 4 Wallace, 127. 

Lamar v. Dana, 18 Int. Rev. Rec, 163; 14 Fed. Cas., No. 8006. 
In re Kemp, 16 Wis., 376. 
But see Suspension of Writ of Privilege of Habeas Corpus, 10 Op. Atty. Gen., 74. 

The President has no power to initiate or declare a war against 
either a foreign nation or a domestic State. But by the acts of 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 27 

Congress of February 28, 1795, and March 3, 1907, he was author- 
ized to call out the militia and use the military and naval forces of 
the United States in case of invasion by foreign nations, and to 
suppress insurrection against the government of a State or of the 
United States. If a war be made by invasion of a foreign nation, 
the President is not only authorized but bound to resist force by 
force. He does not initiate the war, but is bound to accept the 
challenge without waiting for any special legislative authority. 
And whether the hostile party be a foreign invader, or States organ- 
ized in rebellion, it is none the less a war, although the declaration 
of it be "immaterial." 

The Brig Army Warwick, 2 Black (U. S.), 668. 

The right of the President to institute a blockade of ports in pos- 
session of the States in rebellion, which neutrals were bound to 
regard, was affirmed in The Brig Army Warwick (2 Black (U. S.), 671). 

Whether the President, in fulfilling his duties as Commander in 
Chief in suppressing an insurrection, has met with such armed hostile 
resistance and a civil war of such alarming proportions as will com- 
pel him to accord to those engaged therein the character of belliger- 
ents, is a question to be decided by him, and the courts must be gov- 
erned by the decisions and acts of the political department of the 
Government to which the power was intrusted. 

The Brig Army Warwick (2 Black (U. S. I, :j70). 

Even if, in the absence of congressional action, the power of per- 
mitting partial intercourse with a public enemy may not be exer- 
cised by the President alone, who is constitutionally invested with 
the entire charge of hostile operations, there is no doubt that a con- 
currence of both affords ample foundation for any regulations on the 
subject. 

Hamilton v. Dillin, 21 Wallace, 87. 

The President was authorized during the Civil War, as Commander 
in Chief of the Armies of the United States, to employ secret agents 
to enter the rebel fines and obtain information respecting the strength, 
resources, and movements of the enemy, and contracts to compensate 
such agents are so far binding upon the Government as to render it 
lawful for the President to direct payment of the amount stipulated 
out of the contingent fund under his control. 

Totten i'. U. S., 92 U. &., 108, affirming 9 Ct. CI., 506. 

The President is made Commander in Chief of the Army and Navy 
of the United States at all times, and Commander in Chief of the 
militia only when called into the actual service of the United States. 

Johnson v. Sayre, L58 U. S., 115. 

The right of the President to command armies and direct the minut- 
est movement of the soldier is very different from the exercise of the 
power of appointment of a person, by which the higher function of 
war is performed, through the instrumentality of officers of the Army. 
The power of appointment in the military service is not incident to 
the President as an exclusive power of his office, but is subject to the 
advice and consent of the Senate, so that in its exercise there is called 
into requisition other volition than the mere will of the President. 
McBlair v. U. S., 19 Ct. CI., 537. 



28 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

The President, as Commander in Chief, and any commanding 
officer exercising his powers, may lawfully require any officer of the 
United States to perform the appropriate duties of his station in the 
militia when in the service of the United States whenever the public 
interest shall so require. If it were otherwise it would he in the power 
of the States by omitting to appoint the proper officers to defeat the 
whole object of the constitutional provision empowering Congress 
"to provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions; to provide for 
organizing, arming, and disciplining the militia, and for governing 
such part of them as may be employed in the service of the United 
States, reserving to the States, respectively, the appointment of the 
officers and the authority of training the militia according to the 
discipline prescribed by Congress. 

Disbursements by Quartermasters to Militia, 2 Op. Atty. Gen., 711. 

The admission of merchandise into the ports of the United States 
from conquered territory is governed solely by existing laws passed 
by Congress, and the President has no power to add to or detract 
from the force and effect of such laws. 

Porto Rico, Duties, 22 Op. Atty. Gen., 560. 

The President must at all times be governed by law, and his orders 
which the law does not warrant will be no protection to officers 
acting under them. 

Little v. Barreme, 2 (ranch, 170. 

An example is where he appoints an unlawful military commission, 
which proceeds to try and punish offenders against the law. 
.Milligan v. Hovey, 3 Biss., 13. 
The word ''department" clearly means the same thing as in the 
clause giving Congress the power to vest the appointment of inferior 
officers in the heads of departments. The "principal officer" in 
this clause is the equivalent to the "head of department" in the 
other. 

U. S. v. Germaine, 99 U. S., 511. 

TRIAL BY JURY. 

•' The trial of all crimes, except in cases of impeachment, shall be by jury." (Art. 
Ill, sec. 2.) 

This provision was infringed by the trial of a citizen, in a State 
which upheld the authority of the Government and whsre the courts 
were open and their process unobstructed, by a military commission, 
a court not ordained and established by Congress. 
Ex parte Milligan. 4 Wallace, 115. 

INDICTMENT BY GRAND JURY. 

"No person shall be held to answer for a capital or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except in cases arising in the 
land or naval forces, or in the militia, when in actual service in time of war or public 
danger." (Amendment, Art. V.) 

This amendment, instead of limiting the jurisdiction of courts- 
martial, leaves it to be exercised to the fullest extent, under such 



„ 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 29 

"rules for the government and regulation of the land and naval 
forces" as Congress might, under the power given to it by the Con- 
stitution, see fit to prescribe. 

Runkee v. U. S., 19 Ct. 01s., 411. 
Ex parte Reed, 100 U. S., 21. 
Kurtz i;. Moffitt, 115 U. S., 500. 

Section 12 of the act of March 3, 1873, providing "that all prisoners 
under confinement in said military prisons undergoing sentences of 
court-martial shall be liable to trial and punishment by courts- 
martial under the rules and articles of war for offenses committed 
during said confinement," is constitutional, as applied to one under 
confinement in a military prison, who at the time of the sentence was 
also sentenced to be dishonorably discharged from the military serv- 
ice. The discharge was no doubt operative to deprive him of pay 
and allowances, but so long as he was held in custody under sentence 
of a court-martial for the purpose of enforcing discipline and punishing 
him for desertion he remained subject to military law, which pre- 
vailed in the prison where he was confined, and subject also to the 
jurisdiction of a court-martial for all violations of such law committed 
while he was thus confined. 

In re Craig, 70 Fed. Rep., 909. 

An offense committed while in actual service, though an arrest and 
commencement of the prosecution are not made before the connection 
of the offender with the service is legally severed by the expiration of 
his term of service or by resignation, dismissal, or other discharge, is 
a "case arising in the naval forces," and Congress has power to author- 
ize a trial after the connection is so severed and after the accused has 
become a private citizen. 

In re Bogart, 2 Sawyer (U. 8.), 390; 3 Fed. Cas., No. 1590. 
The words "when in actual service in time of war or public danger" 
apply to the militia only. All persons in the military or naval service 
of the United States are subject to the military law — the members of 
the Regular Army and Navy at all times, the militia so long as they 
are in such service. 

Johnson v. Sayre, 158 U. S., 114. 

Ex parte Mason, 105 U. S., 700. 

In re Bogart, 2 Sawyer (U. S.), 390: 3 Fed. Cafl., No. 1590. 

V. 8. v. MeKenzie, 1 N. Y. Leg. Obs., 371; 30 Fed. Cas., No. 18313. 

QUARTERING SOLDIERS. 

" No soldier shall, in time of peace, be quartered in any house without the consent 
of the owner, nor in time of war but in a manner to be prescribed by law." (Amend- 
ments, Art. III.) 

The evil at which this is aimed has been so long unpracticed in this 
country that it is difficult to suggest to the mind the possibility that 
security against it may be necessary in a country governed by settled 
principles of law. Nevertheless, a declaration of the indefeasible right 
of the citizen can never be wholly needless. 

Soldiers will be quartered upon the people, if at all, under the orders 
of a superior, and either because of some imperious necessity, or in 
order to annoy and injure those who are compelled to receive them 
The plea will always be that of necessity; but this can never be a 



30 CONSTITUTIONAL SOURCES OF THE LAWS OP WAR. 

truthful plea in time of peace, and if the necessity is likely to arise 
in time of war, the first principles of justice demand that it should 
be provided for by law, and limitations and restraints imposed. At 
best it is an arbitrary proceeding; it breaks up the quiet of the home : 
it appropriates the property of the citizen to the public use without 
previous compensation, and without assurance of compensation in 
the future, unless the law shall have promised it. It is difficult to 
imagine a more terrible means of oppression than would be the power 
in the executive, or in a military commander, to fill the house of an 
obnoxious person with a company of soldiers, who shall be fed and 
warmed at his expense, under the direction of an officer accustomed 
to the exercise of discretionary authority within the limits of his 
command, and in whose presence the ordinary laws of courtesy, not 
less than the rules of law which protect person and property, may be 
made to bend to whim or caprice. Such expressions were fresh in 
the minds of the people when the Declaration of Independence was 
made, and they then denounced what they prohibited by this amend- 
ment. It is proper to add that this protection has no application 
in time of war to the enemies of the country. 
Cooley, Constitutional Limitations. 6th ed., 373. 

TREASON. 

"Treason against the United States shall consist only in levying war against them, or 
in adhering to their enemies, giving them aid and comfort. No person shall be con- 
victed of treason unless on the testimony of two witnesses to the same overt act, or 
on confession in open court. The Congress shall have power to declare the punish- 
ment of treason, but no attainder of treason shall work corruption of blood or forfeiture 
except during the life of the person attainted." (Art. Ill, sec. 3.) 

No other acts than those defined in the Constitution can be declared 
to constitute the offense. Congress can neither extend, nor restrict, 
nor define the crime. Its power over the subject is limited to pre- 
scribing the punishment. 

U. S. v. Greenhouse, 4 Sawyer (U. S.), 457; 26 Fed. Cas., No. 15254. 
U. S. v. Hoxie, 1 Paine (U. S.), 265; 26 Fed. Cas., No. 15407. 

Congress can only prescribe the punishment for treason, regulate 
the trial, and direct the mode in which that punishment is to be 
executed . 

U. S. v. Fries, 3 Dall. (U. S.), 515; 9 Fed. Cas., No. 5126. 

Madison, in the Federalist, No. XLII, said: 

As treason may be committed against the United States, the authority of the United 
States ought to be enabled to punish it. But as new-fangled and artificial treasons 
have been the great engines by which violent factions, the natural offspring of freer 
government, have usually wreaked their alternate malignity on each other, the Con- 
vention have, with great judgment, opposed a barrier to this peculiar danger by 
inserting a constitutional definition of the crime, fixing the proof necessary for con- 
viction of it, and restraining the Congress, even in punishing it, from extending the 
consequences of guilt beyond the person of its author. 

The two species of treason mentioned in the Constitution are 
described in it in language borrowed from that of the English statute 
of treasons. 

The phrase "levying war" is understood and applied in the 
United States in the sense in which it had been used in England. 

U. S. v. Greiner, 4 Phila., 396; 26 Fed. Cas., No. 15262. 
See also U. S. v. Burr, 25 Fed. Cas., No. 14693. 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 31 

Thermovision of the Constitution defining in what treason shall 
consist was taken from the statute of 25 Edward III, of England, 
which had been several times reaffirmed, for the purpose of correct- 
ing abuses that had grown up in that kingdom in respect to the law. 
both by acts of Parliament and decisions of the courts under the 
tyrannical reigns of the Tudors and the Stuarts. Those abuses were 
well known to the founders of our Government, and doubtless led to 
the peculiar phraseology observable in the definition of the crime, 
namely, that it shall consist only in levying war against the United 
States, or in adhering to ! heir enemies, giving them aid and comfort, 
and to the other equally stringent feature, that no person shall be 
convicted of the offense except on the testimony of two witnesses to 
the same overt act. The first prohibits Congress from making any 
other acts of the citizen than those specified, (reason; and the second 
prevents the introduction of constructive treasons, which had been 
engrafted upon this statute of Edward III by judicial decisions. 

Law of Treason, 5 Blatchf. (TJ. S.), 549; 30 Fed. Cas. No. 18271. 
Druecker r. Salomon, 21 Wis., 626. 

For instances of forced and arbitrary constructions to raise offenses 
into the crime and punishment of treason, which never had been 
suspected to be such, see Blackstone. Fourth Book. 75, and Trial of 
Algernon Sidney, State Trials, SI 7. 

There must be an actual assembly for the purpose of effecting a 
treasonable purpose, to constitute a levying of war. 

Ex parte Bollman, 4 Cranch, 126. 

U. S. v. Greathouse, 4 Sawy. (U. S.), 457. 

To constitute an actual levy of war there must be an assembly of 
persons, met for the treasonable purpose, and some overt act done, 
or some attempt made by them with force to execute or toward 
executing that purpose. There must be a present intention to pro- 
ceed in the execution of the treasonable purpose by force. The 
assembly must now be in a condition to use force, and must intend 
to use it. if necessary, to further, or to aid. or to accomplish the 
treasonable design. 

Law of Treason, 1 Story (U. S.), 614; 30 Fed. Cas., No. 18275. 

If the purpose be entirely to overthrow the Government at any one 
place, by force, that is a treasonable purpose. 

Charge of Grand Jury, 1 Sprague (U. S.), 602; 30 Fed. Cas., No. 18273. 
Charge of Grand Jury, 2 Sprague (U. S.), 292; 30 Fed. Cas., No. 18274. 

Although there must be forced used, it is not necessary that there 
be any military array or weapons. 
Druecker v. Salomon, 21 Wis., 626. 

Nor that any actual violence be committed, if a body of men are 
assembled for the purpose of making war against the Government, 
and are in a condition to make that war. 
U. S. v. Burr, 25 Fed. Cas., No. 14693. 
To instigate treason successfully is to commit it. 

Charge to Grand Jury, 2 Wall., jr. (C. C), 134; 30 Fed. Cas., No. 18276. 

It is treason ''in levying war against the United States'" for persons 
who have known but" a common interest with their fellow citizens, 



32 CONSTITUTIONAL SOURCES OF THE LAWS OF WAE. 

to oppose or prevent, by force, numbers, or intimidation, a public 
and general law of the United States, with intent to prevent its 
operation or compel its repeal. Force is necessary to complete the 
crime; but the quantum of force is immaterial. 

U. S. v. Fries, 3 Dall. (U. S.), 515; 9 Fed. Gas., No. 5126. 

Charge to Grand Jury, 2 Wall., jr. (C. C), 134; 30 Fed. Cas., No. 18276. 

Persons engaged in forcibly opposing the execution of a draft 
commit the crime of treason. 

Druecker v. Salomon, 21 Wis., 626. 

The treasonable design need not be a direct and positive intention 
entirely to subvert and overthrow the Government. It will be equally 
treason if the intention is by force to prevent the execution of any 
one or more general and public laws of the Government or to resist 
the exercise of any legitimate authority of the Government in its 
sovereign capacity. 

Law of Treason, 1 Story (U. S.), 614; 30 Fed. Cas. No. 18275. 

If the object be to prevent by force the execution of any public 
law of the United States, generally and in all cases, that is a treason- 
able purpose, for it is entirely to overthrow the Government as to 
one of its laws. And if there be such an assemblage for the purpose 
of carrying such an intention into effect by force, it will constitute 
levying war. But the sudden outbreak of a mob, or the assembling 
of men in order, by force, to defeat the execution of the law, in a 
particular instance, and then to disburse without the intention to 
continue together, or to reassemble for the purpose of defeating the 
law generally, in all cases, is not levying war. 

Charge of Grand Jury, 1 Sprague (U. S.), 602. 
Charge of Grand Jury, 2 Sprague (U. S.), 292. 

When the object of an insurrection is of a local or private nature, 
not having a direct tendency to destroy all property and all govern- 
ment by numbers and armed force, it will not amount to treason; 
and in these and other cases that occur, the true criterion is the 
intention with which the parties assembled. 

U. S. v. Hoxie, 1 Paine (U. S.), 285. 

The resistance of the execution of a law of the United States, 
accompanied with any degree of force, if for a private purpose, is 
not treason. 

U. S. v. Hanway, 2 Wall. Jr. (C. C), 139: 26 Fed. Cas.. No. 15299. 
The occupation of a fortress by a body of men. in military array, 
in order to detain it against a government to which allegiance is due, 
is treason on the part of all concerned, whether in the occupation 
or in the detention of the post. 

U. S. v. Greiner, 4 Phila., Pa,. 396; 26 Fed. Cas. No. 152(12. 
There must, to constitute the crime, be a levying of war against 
the United States in their sovereign character,' and not merely a 
levying of war exclusively against the sovereignty of a particular 
State. 

Law of Treason. 1 Story (TJ. S.), 614; 30 Fed. Cas. No. 18275. 
The term ''enemies," as used in the second clause, according to 
its settled meaning at the time the Constitution was adopted, applies 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 33 

only to the subjects of a foreign power in a state of open hostility 
with us. It does not embrace rebels in insurrection against their 
own government. An enemy is always the subject of a foreign 
power who owes no allegiance to our Government or country. 

U. S. i'. Greathouse, 4 Sawy. (U. S.), 457; 28 Fed. Cas. No. 15254. 

What constitutes the overt act, under the clause "adhering to 
their enemies, giving them aid and comfort" must depend very 
much upon the facts and circumstances of each particular case. 
There are some acts of the citizen, in his relations with the enemy, 
which leave no room for doubt, such as giving him intelligence with 
intent to aid him in his acts of hostility, sending him provisions or 
money, furnishing arms or troops or munitions of war; surrendering 
a military post, all with a like intent. These and kindred acts are 
overt acts of treason by adhering to the enemy. 

Law of Treason, 5 Blatchf. (U. S.), 549; 30 Fed. Cas., No. 18,271; Hanover v. 
Doane, 12 Wallace, 347. 

Delivering up prisoners and deserters to an enemy is treason, and 
nothing but a well-grounded fear of life will excuse the act. 

U. S. v. Hodges, 2 Wheel. Crim. (N. Y.), 477. 

Words oral, written, or printed, however treasonable, seditious, or 
criminal of themselves, do not constitute an overt act of treason, 
within the definition of the crime; but are admissible as evidence of 
intent, as well as of the act itself, either in finding a bill of indictment 
or on the trial of it. 

Law of Treason, 5 Blatchf. (U. S.), 549. 

If war be actually levied, that is if a body of men be actually 
assembled for the purpose of effecting by force a treasonable purpose, 
all those who perform any part, however minute, or however remote 
from the scene of action, and who are actually leagues in the general 
conspiracy, are to be considered as traitors. 

Ex parte Bollman, 4 Cranch, 126. 
Law of Treason, 4 Blatchf. (U. S.), 518. 
Charge of Grand Jury, 1 Sprague (U. S.), 602. 
U. S. v. Burr, 25 Fed. Cas., No. 14,693. 
Charge of Grand Jury, 2 Sprague, 285. 
Druecker v. Salomon, 21 Wis., 626. 

An alien, whilst domiciled in the United States, owes a local and 
temporary allegiance, which continues during the period of his resi- 
dence, and he is amenable to the laws of the United States prescribing 
punishment for treason and for giving aid and comfort to rebellion. 

Carlisle v. U. S., 16 Wall. (U. S.), 154. 
Green's Case, 8 Ct. Cls., 412. 

Treason is a breach of allegiance and can be committed by him 
who owes allegiance either perpetual or temporary. 
U. S. v. Wiltberger, 5 Wheaton, 97. 

The Confederate government was never acknowledged by the 
Government of the United States as a de facto government in the 
sense that adherents to it in war against the Government de jure did 
not incur the penalties of treason. From a very early period of 

S. Doc. 86, 65-1 3 



34 CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 

the Civil War to its close, it was regarded as simply the military 
representative of the insurrection against the authority of the United 
States. 

Thorington v. Smith, 8 Wallace, 1. 
Spratt v. U. S., 20 Wallace, 464. 

In treason there are no accessories ; all who engage in the rebellion 
at any stage of its existence, or who designedly give it any species 
of aid and comfort, in whatever part of the country they may be, 
stand on the same platform; they are all principals in the commission 
of the crime; they are all levying war against the United States. 

U. S. v. Greathouse, 4 Sawy. (U. S.), 457. 
Fries's Case, 9 Fed. Cas., No. 5127. 

The provisions of the Constitution relating to the evidence nec- 
essary to convict of treason apply only to the trial of indictments, 
and are inapplicable to proceedings before grand juries or to prelim- 
inary examinations. 

U. S. v. Greiner, 4 Phila. (Pa.), 396; 26 Fed. Cas., No. 15262. 

Of the overt act of treason there must be proof by two witnesses, 
and if there be testimony by four witnesses that the defendant was 
at a certain place, at a great distance from his home, and that he 
was armed, that the conspiracy was formed at that place, and that 
the defendant was actually passed on the march to the place where 
the treasonable acts were to be carried out, the evidence is sufficient, 
even if there be testimony of only one witness as to his actual presence 
at the place of attack. 

U. S. v. Mitchell, 2 Dall. (U. S.), 348; 26 Fed. Cas., No. 15788. 

When a confession is made out of court, it is not itself sufficient to 
convict although proved by two witnesses. 

U. S. v. Fries, 3 Dall. (U. S.), 615. 
U. S. v. Greiner, 4 Phila. (Pa.), 396. 

The intent may be proved by one witness, collected from circum- 
stances, or even by a single fact. 

U. S. v. Fries, 3 Dall. (U. S.), 515. 

A declaration by one accused accompanying the overt act laid in 
the indictment may be given in evidence to show the intent with 
which the act was done. 

U. S. v. Lee, 2 Cranch (C. C), 104. 
TJ. S. v. Fries, 3 Dall. (U. S.), 515. 

What was intended by the constitutional provision prescribing 
punishment for treason is free from doubt. In England attainders 
of treason work corruption of blood and perpetual forfeiture of the 
estate of the person attainted, to the disinherison of his heirs or of 
those who would otherwise be his heirs. Thus innocent children 
were made to suffer because of the offense of their ancestor. When 
the Federal Constitution was framed, this was felt to be a great 
hardship, and even rank injustice. For this reason it was ordained 
that no attainder of treason should work corruption of blood or 
forfeiture except during the life of the person attainted. 

Wallach v. Van Riswick, 92 U. S., 202. 
Bigelow v. Forrest, 9 Wallace, 350. 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 35 

The jurisdiction of the State courts does not extend to the offense 
of treason against the United States. 

People v. Lynch, 11 Johns (N. Y.), 553. 

HABEAS CORPUS. 

"The privilege of the writ of habeas corpus shall not be suspended, unless when 
in cases of rebellion or invasion the public safety may require it." (Art. I, sec. 9, 
•clause 2. 1 

Suspension has been many times declared in Great Britain, or in 
some section of the British Empire, within the present century; 
sometimes in view of threatened invasion, and sometimes when ris- 
ings among the people had taken place, or were feared, and when 
persons whose fidelity to the government was suspected, and whose 
influence for evil might be powerful, had as yet committed no overt 
j act of which the law could take cognizance. It has been well said 
Dy May in his Constitutional History of England, Chapter II, that 
the suspension of the habeas corpus is a suspension of Magna Charta 
itself, and nothing but a great national emergency could justify or 
excuse it. The Constitution limits it within narrower bounds than 
do the legislative precedents in Great Britain. (Cooley.) 

If at any time the public safety should require the suspension of 
the powers vested by statute in the courts of the United States to 
issue writs of habeas corpus, it is for the legislature to say so. The 
question depends on political considerations, on which the legis- 
lature is to decide. 

Per Marshall, C. J., in ex parte Bollrnan, 4 Cranch, 101. 

Ex parte Merryman, Tanev (U. S.), 246. 

Warren v. Paul, 22 Ind., 277. 

Prigg v. Pennsylvania, 16 Peters, 619. 

McCall v. McDowell, Deady (U. S.), 233. 

Congress may authorize the President to suspend the writ of 
habeas corpus whenever in his judgment the public safety requires. 

Ex x>arte Milligan, 4 Wallace. 115. 
Matter of Dunn, 25 How. Pr., 467. 
Matter of Oliver, 17 Wis., 686. 

But, in case of an arrest of a person known to have criminal inter- 
course with insurgents by order of the President in a time of dangerous 
insurrection, the President is justified in refusing to obey a writ of 
habeas corpus requiring him or his agents to produce the body of 
the prisoner and snow the course of his capture detention. 

Suspension of Privilege of Writ of Habeas Corpus, 10 Op. Atty. Gen., 74. 
See also in re Dugan, 6 D. C, 139. 

And the President had the power, in the military exigencies of 
the country during the Civil War, to proclaim martial law, and, as a 
necessary consequence thereof, the suspension of the writ of habeas 
corpus in the case of military arrests. Martial law and the privilege 
of that writ are wholly incompatible with each other. 

Ex parte Field, 5 Blatchf. (IT. S.), 63; 9 Fed. Cas. No. 4, 761. 

But see U. S. v. Porter, 2 Hayw. & H. (D. ('.). 394: 27 Fed. Cas., No. 16074a. 

An arrest and detention under an order of the War Department, 
entitled "Persons discouraging enlistments to be arrested," before 
a,ny attempt made to establish martial law, was held to be in direct 
violation of this clause. 

Ex parte Field, 5 Blatchf. (U. S.), 63. 



36 



CONSTITUTIONAL SOURCES OF THE LAWS OF WAR. 



Congress may suspend the privilege of the writ generally or in 
particular cases; and it may suspend it directly, or it may commit 
the matter within the proper limits, to the judgment of the President 
of the United States. 

McCall v. McDowell, Deadv (U. S.), 233. 
Matter of Oliver, 17 Wis., 686. 

It is only when, in cases of rebeUion or invasion, the public safety 
may require it, that the privilege of the writ can be suspended. 
There is no other restriction. 

Matter of Keeler, Hempt (U. S.), 306; 14 Fed. Cas. No. 7, 637. 

People v. Gaul, 44 Barb (N. Y.\ 105. 

Ex parte Merryman, Taney (IT. S.), 246; 17 Fed. Cas., No. 9, 487. 

Congress has power to protect officers and persons engaged or con- 
cerned in making arbitrary arrests and imprisonments, or arrests 
or imprisonments without ordinary legal warrant or cause, under the 
authority and in pursuance of an act suspending the writ of habeas 
corpus, by the passage of laws indemnifying such officers and persons 
against the ordinary legal consequences thereof, or declaring that they 
shall not be liable to an action or other legal proceeding therefor. 

McCall v. McDowell, Deady (U. S.), 233. 
Freeland v. Williams, 131 U. S., 405. 
Drekman v. Stifel, 8 Wallace, 505. 

But, as a right of action arising under the principles of the common 
law is property as much as tangible things, it is not believed the right 
can be destroyed by statute. The suspension of the writ does not 
legalize a wrongful arrest and imprisonment; it only deprives the 
party thus arrested of the means of procuring his liberty, but does 
not exempt the person making the illegal arrest from liability to 
damages, in a civil suit, for such arrest, nor from punishment in a 
criminal prosecution. 

Griffin v. Wil< ox, 21 Did., 372. 
Johnson v. Jones, 44 111., 142. 
Milligan v. Hovey, 3 Diss., 1. 

The State governments have, in their sovereign capacity, full 
authority of the writ of habeas corpus, and the Federal Government 
is inhibited from suspending its privileges, except in case of rebellion 
or invasion. This power to suspend the writ was necessary to be 
vested in Congress, because in such cases it might become essential 
to the preservation of the United States Government, or that of a 
State or States. But it is only in case of rebellion or invasion that 
the General Government can interfere with the privileges of the writ. 

Baquall v. Ableman, 4 Wis., 167. 
Matter of Booth, 3 Wis., 157. 
Luther v. Borden, 7 Howard, 1. 

Neither the President nor Congress has power to suspend the issuing 
of the writ of habeas corpus by a State court. 

Griffin v. W r ilcox, 21 Ind., 383. 

This does not apply, of course, where martial law has been declared- 



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